MASTERPIECE CAKESHOP, LTD., ET AL., PETITIONERS

V.

COLORADO CIVIL RIGHTS COMMISSION, ET AL.

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

 

 

QUESTION PRESENTED

Whether Colorado's public accommodations law violates the First Amendment as applied to an individual who de­clines to design and create custom wedding cakes for same-sex wedding celebrations that violate his sincere­ly held religious beliefs.

 

SUMMARY OF ARGUMENT

A. The application of Colorado's public accommoda­tions law to petitioners implicates two strands of doc­trine interpreting the Free Speech Clause of the First Amendment. On the one hand, this Court has repeat­edly held that the "freedom of speech prohibits the gov­ernment from telling people what they must say." On the other hand, the Court has made clear that content ­neutral laws targeting conduct ordinarily do not violate the First Amendment.

Although those two First Amendment principles typ­ically operate in separate spheres, they sometimes come into con­flict. In the view of the United States, a First Amendment intrusion occurs where a public accommodations law compels someone to create expression for a particular person or entity and to par­ticipate, literally or figuratively, in a ceremony or other expressive event. Such application of a public accom­modations law exacts a First Amendment intrusion.

B. The application of Colorado's public accommoda­tions law to petitioners involves the requisite degree of compulsion. The law compels Phillips to design and cre­ate a custom wedding cake for a same-sex couple, if he would do the same for an opposite-sex couple. A custom wedding cake is a form of expression, whether pure speech or the product of expressive conduct. It is an artistic creation that is both subjectively intended and objectively perceived as a celebratory symbol of a mar­riage. In addition, the law compels Phillips to partici­pate, through his creative expression, in an expressive event. Weddings are sacred rites in the religious realm and profoundly symbolic ceremonies in the secular one. And within the context of a celebration imbued with such meaning, the cake-cutting ceremony is itself an iconic ritual. When Phillips designs and creates a cus­tom wedding cake for a specific couple and a specific wedding, he plays an active role in enabling that ritual, and he associates himself with the celebratory message conveyed.

Forcing Phillips to create expression for and partic­ipate in a ceremony that violates his sincerely held reli­gious beliefs invades his First Amendment rights. Colorado has not offered, and could not reasonably of­fer, a sufficient justification for that compulsion here.

 

CONCLUSION

The judgment of the Court of Appeals of Colorado should be reversed.